WTO Dispute Settlement Mechanism(2)/刘成伟(37)
To go on with their analysis, the Panel reviews GATT jurisprudence, particularly the Panel Report on Japan-Semi-conductors, in that case, the panel found that although a measure was not mandatory, it could be considered a restriction subject to Art. XI:1 of GATT because “sufficient incentives or disincentives existed for non-mandatory measures to take effect ... [and] the operation of the measures ... was essentially dependent on Government action or intervention [because in such a case] the measures would be operating in a manner equivalent to mandatory requirements such that the difference between the measures and mandatory requirements was only one of form and not of substance ...”. The Panel in present case considers that this ruling suggests that where administrative guidance created incentives or disincentives largely dependent upon governmental action for private parties to act in a particular manner, it is considered a governmental measure. 5
Recalling the criteria applied in Japan-Semi-conductors, i.e., administrative guidance must create incentives or disincentives to act and compliance with the guidance must depend largely on governmental action, for determining whether or not a formally non-binding measure should be assimilated to a governmental restriction under Art. XI:1, the Panel in present case considers that these criteria would certainly also lend themselves satisfactorily to the definition of the term measure under Art. XXIII:1(b). However, they also note that there is nothing in Japan-Semi-conductors suggesting that this incentives/disincentives test should be seen as the exclusive test for characterizing formally non-binding measures as governmental. The Panel finds, therefore, that Japan-Semi-conductors should not be seen as setting forth the exclusive test or outer limit of what may be considered to constitute a measure under Art. XXIII:1(b).
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